Opinions Oct. 28, 2021

Indiana Court of Appeals
Zolo A. Azania v. Kenneth R. Edwards, Tracy Edwards, and Krete Properties, LLC (mem. dec.)
20A-PL-2142
Civil plenary. Affirms the order of eviction and immediate possession in favor of Kenneth R. Edwards, Tracy Edwards and Krete Properties LLC, landlords to Zolo A. Azania, for nonpayment of rent. Finds the landlords’ equitable action for eviction and immediate possession was properly triable by the Lake Superior Court. Also finds Azania waived his review of his claim that his eviction was not permitted due to the COVID-19 eviction moratorium. Finally, finds Azania was subject to eviction for nonpayment of rent in violation of his lease.

James Sanders v. Belinda Sanders (mem. dec.)
21A-DN-466
Domestic relations, no children. Affirms the order awarding James Sanders the marital residence and Belinda Sanders a judgment of $41,919.95 for her half of the home’s equity. Finds the Marion Superior Court’s decisions not to address an unused statutory factor does not undermine its conclusion that the presumption of equal division of property had been rebutted. Also finds the trial court did not abuse its discretion in using a valuation of the marital residence from 2020.

Robert E. Lehman v. Steven F. Fillenwarth, Christine M. Stolle, and Fillenwarth & Stolle, LLC a/k/a Fillenwarth & Associates (mem. dec.)
21A-PL-538
Civil plenary. Affirms the entry of summary judgment for the attorneys representing Michele B. Lehman in an action for malicious prosecution and attorney deceit filed by Robert E. Lehman. Finds Robert’s claim for malicious prosecution fails as a matter of law because there are no genuine issues of material fact on the issue of whether probable cause existed when the contested motions were filed. Also finds there are no genuine issues of material fact on the issue of whether the attorneys engaged in fraud.

Jason U. Ford v. State of Indiana (mem. dec.)
21A-CR-540
Criminal. Affirms Jason U. Ford’s conviction of public intoxication as a Class B misdemeanor. Finds there was sufficient evidence to support Ford’s conviction.

Joshua McKenzie v. State of Indiana (mem. dec.)
21A-CR-658
Criminal. Dismisses Joshua McKenzie’s appeal of the revocation of his probation and the order for him to serve four years executed for Level 5 felony failure to register as a sex offender. Finds McKenzie knowingly and voluntarily waived his right to appeal the Vermillion Circuit Court’s sentencing decision.

State of Indiana v. Brendan Brown (mem. dec.)
21A-CR-732
Criminal. Affirms the grant of Brendan P. Brown’s motion to depose M.B., a minor and the alleged victim in each of the state’s six pending sex-related charges against Brown. Finds the Child Deposition Statute is procedural and impermissibly conflicts with the Indiana Trial Rules. Also finds the Hancock Circuit Court’s judgment on Brown’s motion must be reviewed under the standards for obtaining a child victim’s testimony provided for under Trial Rules 26 and 30, and the state presents no argument that, under those standards, the trial court abused its discretion in allowing M.B. to be deposed. Finally, finds the state has not made a prima facie showing of reversible error.

Rick Scott v. Nicholas McQuiddy (mem. dec.)
21A-PL-773
Civil plenary. Affirms the Clark Circuit Court’s ruling that Rick Scott could not recover under a theory of unjust enrichment in his action against Nicholas McQuiddy. Finds the trial court did not err.

Daniel Farris v. State of Indiana (mem. dec.)
21A-CR-795
Criminal. Affirms Daniel Farris’ 16-year aggregate sentence for his convictions of two counts of Level 4 felony burglary, two counts of Level 6 felony theft, one count of Level 6 felony residential entry, one count of Level 6 felony attempted residential entry and one count of Class B misdemeanor unauthorized entry of a motor vehicle. Finds the Posey Circuit Court did not abuse its discretion in fashioning Farris’ sentence, and the trial court was justified in ordering Farris to serve his sentences consecutively. Also finds the trial court properly considered Farris’ criminal history and his commission of the instant offenses while on pretrial release as aggravating circumstances justifying an enhanced sentence. Finally, finds Farris’ aggregate sentence is not inappropriate.

Janie Givens, et al. v. Estachia Eberle, et al. (mem. dec.)
21A-PL-925
Civil plenary. Affirms the entry of summary judgment in favor of Suella Ferrand and Estachia Eberle in a dispute with Janie Givens, James Kindred and B.K. Finds the Owen Circuit Court’s orders granting summary judgment to Ferrand and Eberle did not constitute entry of partial summary judgment with respect to them, and the trial court was not required to designate the issues or claims upon which it found no genuine issue as to any material facts. Also finds Ferrand’s statements made to Charlotte Church or law enforcement were made pursuant to qualified privilege, plaintiffs have not raised an issue of fact regarding whether the qualified privilege was abused, and qualified privilege is also applicable to Eberle’s statements. Finally, finds the plaintiffs waived their arguments as to allegations under 18 U.S.C. § 241 and conspiracy against rights, false arrest, false imprisonment, emotional distress and false light.

In the Matter of D.C. and K.C. (Children in Need of Services) and A.C. (Mother) v. Indiana Department of Child Services (mem. dec.)
21A-JC-934
Juvenile CHINS. Affirms the dismissal of a child in need of services petition as to D.C. and K.C. in favor of awarding primary physical and legal custody of the children to father A.L.C. Finds the juvenile court did not err in addressing custody in a CHINS proceeding. Also finds the juvenile court did not abuse its discretion in awarding primary custody of the children to A.L.C.

Kyle D. Section v. State of Indiana (mem. dec.)
21A-CR-1021
Criminal. Affirms the revocation of Kyle D. Sexton’s probation and the order that he serve the entirety of his previously suspended sentence. Finds the Dearborn Circuit Court did not abuse its discretion.

In the Matter of the Termination of the Parent-Child Relationship of J.I. (Minor Child) and C.I. (Mother) v. Indiana Department of Child Services (mem. dec.)
21A-JT-1052
Juvenile termination of parental rights. Affirms the termination of mother C.I.’s parental rights to J.I. Finds the evidence is sufficient to support the juvenile court’s conclusion that there is a reasonable probability that the conditions that resulted in J.I.’s removal from C.I.’s care would not be remedied, and tht termination is in J.I.’s best interests.